TaxTMI 
TaxTMI 
2021 (1) TMI 701
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndents to either open GSTN Portal enabling the Petitioner to file its application for refund in Form GST RFD-01, or to manually accept the refund application of the Petitioner pertaining to the periods 2017-18 and 2018-19 in respect of its claim for refund of unutilized Input Tax Credit (hereinafter referred to as 'ITC') pertaining to compensation cess, which the Petitioner claims to be entitled under law. A further prayer has been made seeking a direction upon the respondent-authorities to process and determine the claim of refund of the petitioner pursuant to acceptance of refund application of the said periods. Arguments of the petitioner 5. The petitioner is primarily engaged in manufacture of Sponge Iron falling within the jurisdiction of Respondent no. 6. The petitioner requires 'Coal' as raw material from within the country through one or the other subsidiaries of Coal India Ltd. and also imports Coal from outside the country. 6. Goods and Services Tax (for short 'GST') Act, 2017 as well as The Goods and Services Tax (Compensation of States) Act, 2017 (for short 'Compensation Act'), have been made effective from 1st July, 2017. Compen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the provision of Section 16 of the CGST/SGST Act and the procedure for refund, as governed under the CGST Act and corresponding Rules would be applicable. 11. However, the petitioner claimed ITC of compensation cess in GSTR-3B Return for the month of December, 2018, wherein the entire compensation cess paid by it for the period 1st July, 2017 to December 2018 was claimed as ITC. 12. At this stage, by virtue of the Circular dated 31st December, 2018, it was clarified by Respondent No.-2 that compensation cess can be claimed as ITC and unutilized compensation cess can be claimed as refund, the petitioner, on 4th March, 2019, logged in on GSTN Portal for claiming refund by filing statutory Form GST RFD- 01 towards unutilized ITC at the hands of the petitioner on account of compensation cess for the financial year 2017-18. 13. It is the specific case of the petitioner that when the petitioner logged in on GSTN Portal and filed GST RFD-01 Form for refund, even the claim of refund of the petitioner was computed in terms of Section 54(3) of the CGST/SGST Act, 2017 read with Rule 89 of the CGST/SGST Rules and a sum of Rs. 1,78,38,970/- was determined as refundable to the petitio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing accumulated unutilized ITC for the period April, 2018 to January, 2019 of Rs. 4,09,80,367/- showing in its Electronic Credit Ledger and the petitioner was further entitled to claim refund of the same. When the petitioner attempted to upload statutory GST RFD-01 Form for refund, the said application for refund was not even processed on GSTN Portal and a message was displayed to the petitioner, namely, "File GST RFD-01 for the period 2017-18". It has been stated by the petitioner that due to inadvertence, the screenshot of such application filed by the petitioner was not saved relating to the period 2018-19 and that the respondents have necessary tracking system in the software of GSTN Portal from where such fact can be verified. 19. The grievance of the petitioner is that on one hand the application for refund of the Petitioner for the financial year 2017-18 was not being accepted on GSTN Portal due to technical glitches and, on the other hand, even subsequent application for the period 2018-19 was not being accepted on GSTN Portal with a message directing the Petitioner to first file application for refund for the period 2017-18. The further grievance of the petitioner is....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Grievance Redressal Cell and without even giving adequate opportunity to the petitioner to reply to the said queries, on 24th July, 2019 itself the grievance raised by the Petitioner was closed by intimating, inter alia, that the petitioner was given three reminder e-mails regarding the queries of the Grievance Redressal Cell, but since the petitioner failed to reply to the said reminders, the grievance of the petitioner stands closed. The Screenshot of e-mails all dated 24th July,2019 have been annexed as Annexure-17 series. 24. It is submitted by the learned counsel for the petitioner that under the aforesaid circumstances, the petitioner has been forced to file the present writ petition. Arguments of the Respondents 25. In the present case, two counter-affidavits have been filed by the respondents; one by the respondent nos. 1 to 4 and another by respondent no. 6. 26. The learned counsel appearing for the Respondent nos. 1 to 4 has referred to para nos. 5, 8 and 9 of the affidavit filed on behalf of the said respondents and submits that the averment of the petitioner that the form RFD-01A i.e. refund application could not be filed on GST portal as the option ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....19 dated 24.08.2019 was served upon the petitioner, but they have not chosen to challenge the same. It is also the case of respondent no. 6 that the petitioner has not even removed the objection pointed out in the refund rejection order nor has made a fresh application removing the discrepancies pointed out. 29. The learned Advocate General has also referred to the Circulars dated 13.03.2018 and 15.03.2018 issued by CBIC to submits that refund application of the petitioner was not as per the Circulars. The respondent no. 6 has not chosen to give any para wise comment to the writ petition and their specific stand is that the refund application of the petitioner had already been rejected which has not been challenged by the petitioner. 30. The learned Advocate-General appearing for the respondent no. 6 has also relied upon the following judgements: (i) (2016) 15 SCC 125 (Jayam and Company Vs. Assistant Commissioner and Another) (ii) 2020 SCC OnLine Bom 437 (Nelco Limited Vs. Union of India and Others) (iii) 2020 SCC OnLine Raj 381 (Shree Motors Vs. Union of India and Ors. with analogous case) (iv) 2018 (19) GSTL 228 (Willowood Chemicals Pvt. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ar as the counter-affidavit filed by the respondent no. 6 is concerned, another rejoinder has been filed by the petitioner to submit that the respondent no. 6 has not addressed the issue at all, in as much as, the rejection order dated 24.08.2019 which has been marked as Annexure- A to the counter-affidavit filed by respondent no. 6 is in respect of refund application pertaining to refund of excess IGST for the financial year 2018-19 and has got no bearing in this case. This case relates to refund of excess ITC of compensation cess for the period 2017-18 to 2018-19 and accordingly, there was no occasion for the petitioner to challenge the said rejection order dated 24.08.2019 before this Court. The petitioner has also submitted that similar relief of refund of compensation cess for subsequent period of the year 2019-20 has been allowed and the amount vide payment advice dated 23.07.2020 has already been credited in the account of the petitioner. 34. The learned counsel for the petitioner has submitted that the resolution of problem as quoted in the counter-affidavit filed by respondent no. 4, having not been communicated to the petitioner, the petitioner cannot be put to any dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpensation cess on account of zero - rated supplies made under Bond/Letter of Undertaking and accordingly Circular No. 79/53/2018-GST/ F. No. CBEC - 20/16/04/2018-GST was issued by Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes and Customs, GST Policy Wing, New Delhi, Dated the 31st December, 2018 and addressed to The Principal Chief Commissioners/Chief Commissioners/Principal Commissioners/ Commissioners of Central Tax (All)/The Principal Directors General/ Directors General (All)/ The Principal Chief Controller of Accounts (CBIC) as contained in annexure -5 of the writ petition , whose relevant portion is quoted as under:- "Subject: Clarification on refund related issues- Reg. Various representations have been received seeking clarification on various issues relating to refund. In order to clarify these issues and to ensure uniformity in the implementation of the provisions of law across field formations, the Board, in exercise of its powers conferred by section 168 (1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as "CGST Act"), hereby clarifies the issues detailed hereunder: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ective months would be admissible. Further, the recomputed amount of eligible refund (of compensation cess) in respect of past periods, as aforesaid, would not be admissible in respect of consignments exported on payment of IGST. This process would be applicable for application for refund of compensation cess (not claimed earlier) in respect of the past period. b) Issue: A registered person uses coal for the captive generation of electricity which is further used for the manufacture of goods (say aluminium) which are exported under Bond/Letter of Undertaking without payment of duty. Refund claim is filed for accumulated Input Tax Credit of compensation cess paid on coal. Can the said refund claim be rejected on the ground that coal is used for the generation of electricity which is an intermediate product and not the final product which is exported and since electricity is exempt from GST, the ITC of the tax paid on coal for generation of electricity is not available? Clarification: There is no distinction between intermediate goods or services and final goods or services under GST. Inputs have been clearly defined to include any goods other than capital goods use....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... manner as detailed in para 9(a) above. This is subject to the restriction that the accounting entry showing the said ITC as cost is also reversed." 38. It is the specific case of the petitioner that the petitioner claimed paid amount of compensation cess for the period 1st July, 2017 to December 2018 as ITC in GSTR-3B Return for the month of December, 2018, and thereafter pursuant to aforesaid Circular dated 31st December, 2018, the petitioner, on 4th March, 2019, logged in on GSTN Portal for claiming refund by filing statutory Form GST RFD- 01 towards unutilized ITC on account of compensation cess for the financial year 2017-18 but could not upload the refund application due to technical glitches. On the same day the petitioner made a complaint in the Helpdesk of GSTN Portal and the Petitioner was allotted Ticket No. 201903045258658 dated 4th March, 2019. It is the specific case of the petitioner that in spite of allocation of said Ticket Number, no response was received by the Petitioner from the Helpdesk intimating the reason as to why the application for refund for the financial year 2017-18 was not being accepted on GSTN Portal. Specific statement to this effect has bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to January, 2019 of Rs. 4,09,80,367/- showing in its Electronic Credit Ledger and the Petitioner was further entitled under law to claim such refund in terms of Section 16(4) read with Section 54 of the CGST/SGST Act. However, when the Petitioner attempted to upload statutory GST RFD-01 Form for refund, the said application for refund was not even processed on GSTN Portal and a message was displayed to the Petitioner, namely, "File GST RFD-01 for the period 2017-18". It is stated that due to inadvertence, the screenshot of such application filed by the Petitioner was not saved by it. However, the Respondents have necessary tracking system in the software of GSTN Portal from where such fact can be verified." The Petitioner had also filed a detailed representation before the Respondent-Commissioner of State Tax on 14th March, 2019 (Annexure-10) and also before the Deputy Commissioner of State Tax (Respondent No. 6) bringing the aforesaid fact to the knowledge of the said authorities to resolve the problem so that refund application of the Petitioner can be uploaded on GSTN Portal and/or the claim of refund of the Petitioner of its unutilized ITC towards compensation cess can be p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....entitled to get refund of unutilized GST Cess against Export of Sponge Iron for the period 2017-18 and 2018-19. (5) We are trying again and again to file Refund claim in form GST RFD-01 for the period 2017-18, some steps were correctly followed but thereafter the option of SAVE/REVIEW/SUBMIT is not activated. (6) We registered complain in the Help lime bearing Ticket number- 201903045258658 dated 4th March, 2019 but they are unable to resolve the problem. (7) Then we our self-proceeded to file Refund Application for the period 2018-19 (upto Jan, 2019) with a view to file the Refund Application for 2017-18 as and when the problem is resolved but a message is delivered "file GST RFD 01 for the period 2017-18". If we file 'NIL' refund claim for the period 2017-18 only then claim of 2018-19 may be completed. And hence your honour is requested to solve the problem so that Refund Claim could be filed at the earliest." 40. In sum and substance, the argument of the learned Advocate General appearing on behalf of respondent no. 6 is that in order to avail Input Tax Credit or to avail refund of compensation cess, the procedure prescribed is requ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of communication of the resolution comments is mentioned in the counter affidavit although a specific plea was raised by the petitioner in the writ petition that the petitioner did not receive any response to the complaint in help-desk of GSTN portal on 04.03.2019 for which the petitioner was allotted ticket no. 201903045258658 and also to the representation dated 14.03.2019 (Annexure-10) and subsequent communications. There is no dispute that the last date for submission of refund application was 31.03.2019 and as per para 8 of the counter-affidavit filed by the Respondent nos. 1 to 4, the ticket allotted to the petitioner was closed on 25.03.2019 with the aforesaid resolution comments quoted in the said counter affidavit. 45. This court is of the considered view that mere resolution comment is not sufficient, it was also required to be communicated to the petitioner so that the petitioner could have complied with the directions issued in the resolution comments in order to claim its refund. It is not in dispute that if the petitioner could adhere to the directions mentioned in the resolution comment, the petitioner could have filed the application for refund of compensation ce....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... all respect, evidencing the amount of input tax. 12. It is a trite law that whenever concession is given by statute or notification, etc. the conditions thereof are to be strictly complied with in order to avail such concession. Thus, it is not the right of the "dealers" to get the benefit of ITC but it is a concession granted by virtue of Section 19. As a fortiori, conditions specified in Section 10 must be fulfilled. In that hue, we find that Section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is not permissible for the dealers to argue that the price as indicated in the tax invoice should not have been taken into consideration but the net purchase price after discount is to be the basis. If we were dealing with any other aspect dehors the issue of ITC as per Section 19 of the VAT Act, possibly the arguments of Mr Bagaria would have assumed some relevance. But, keeping in view the scope of the issue, such a plea is not admissible having regard to the plain language of sections of the VAT Act, read along with other provisions of the said Act as referred to above." It is the specific case of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rictly complied in order to avail such concession. B. The other judgement which has been relied upon by the State - respondent no. 6 is reported in 2020 SCC OnLine Bom 437 (Supra). The said judgement was dealing with the validity of Rule 117 of Central Goods and Services Tax Rules, 2017 and the validity of the said Rule 117 has been upheld by tracing the power to frame such rule to the power conferred under Section 164(2) of the Central Goods and Services Tax Rules, 2017. It was also held that time limitation stipulated therein was in consonance with the transitional nature of the enactment and was neither arbitrary nor unreasonable. It was also held that availment of Input Tax Credit under Section 140(1) of Central Goods and Services Tax Act was a concession attached with the condition of its exercise within the time limit. The matter related to filing of form known as GST TRAN-1 for availing Input Tax Credit accumulated under earlier tax laws upon certain conditions. Rule 117(1) states that the person entitled to take credit of Input Tax under Section 140 would file a declaration electronically in a form known as GST TRAN-1 within 90 days and the period could be extended on th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to the respondents to treat the case of the petitioner as falling within the ambit of Rule 117(1A). The Hon'ble Bombay high Court ultimately held as under: "86. To conclude, the time limit stipulated under Rule 117 of the Rules is not ultra vires of the Act. This Rule is traceable to the power conferred under section 164(2) of the Act. The time limit stipulated in Rule 117 is in consonance with the transitional nature of the enactment, and it is neither arbitrary nor unreasonable. Availment of input tax credit under section 140(1) is a concession attached with conditions of its exercise within the time limit. The IT Grievance Redressal Cell is set up by the GST Council to examine the existence of technical difficulties on the common portal. Sufficient guidance is provided in the definition of technical difficulty in Rule 117(1A). Examining the system log to ascertain the existence of technical difficulties on the common portal for registered persons, is not arbitrary, nor does it lead to a fettering of discretion by the authorities. Those registered persons who could not submit the declaration by the due date because of technical difficulties on the common portal as ....